Category Archives: Fifth Amendment

To the editor: From the constitution's Fifth Amendment: "... nor shall private property be taken for public use without just compensation."

How much clearer can it be? Mortgage-holders and landlords in Massachusetts are being forced by the state to allow their creditors to stay on their property without paying their debt. The victims are the mortgage-holders and the landlords.

Prior to the pandemic, a homebuyer of mine chose to no longer make his monthly payments to me. The foreclosure process was started, but was stalled by the pandemic moratorium. As of this writing, the occupants have been in that house for nearly three years, without paying a cent. Meanwhile, I have to pay their insurance, taxes and fire district fees to protect the property. And, I have a mortgage of my own to pay, so I don't lose the property. All because the government orders it to be so.

It's delusional and naive for legislators to assume that these creditors will make up the missed payments they'll just move on to other housing accommodations. So where's my "just compensation"? I suggest that the compensation checks being doled out by state and federal authorities are probably better at supporting the vape shops, tattoo parlors and retail marijuana stores than paying rents and mortgages. How fair and just is that? Why am I forced by the government to let these people stay in my house?

We're all sympathetic to this situation where people have lost their livelihoods due to this pandemic. But what gives the government the authority to conscribe me to cure this? I submit that this should be the responsibility of all of us as a whole, not a select few. We all read about how difficult it is to find affordable housing. How do you think that this moratorium stuff is going to impact that? I suspect that there will be fewer folks staying in the landlord business after this, since now it's clearly understood that the government can arbitrarily trample on that Fifth Amendment right at any time.

I propose that these landlords and mortgage-holders be given tax credits to compensate for lost payment. I'm confident that the credits won't be abused any more than the stimulus checks.

Jon Macht, Pittsfield

Original post:
Letter: Where is our Fifth Amendment? | Letters To Editor | berkshireeagle.com - Berkshire Eagle

opinion

Andrew P. Napolitano| Special to the USA TODAY Network

The dispute over whether Roman Catholics who facilitate abortions should be permitted to receive the Blessed Sacrament appears to be coming to a head as President Joseph R. Biden Jr., a public Roman Catholic and public abettor of abortion, continues to attend Mass regularly and receive.

The Church has condemned abortion as being among the gravest of sins. To Catholics, the baby in the womb is a distinct human being who enjoys the right to live, and the Blessed Sacrament is not a symbol; it is substance. It is the body, blood, soul and divinity of Our Lord and Savior Jesus Christ, and there are necessary preconditions to its reception.

Can a person who facilitates killing a class of innocent human beings worthily receive the Blessed Sacrament? In a word: No. Here is the backstory.

There is no ambiguity in the Church's teaching about abortion. It is the gravest of evils. All humans have the right to live from conception to natural death. It is a core teaching of the Church: "Thou shalt not kill."

Also core among the Church's teachings is that Catholics have a duty to inform their consciences of what the Church teaches, to exercise their informed reason in distinguishing right from wrong and to conform their acts to core Church teachings. A properly formed conscience will conclude that it is always wrong intentionally to kill an innocent human life. I doubt that Biden disagrees with these principles. If he does, he is in the wrong church.

The stumbling block for Biden and other Catholic supporters of abortion is whether or not the baby in the womb is a person. If the baby is a person, then all abortion is homicide. The Fifth Amendment protects the life, liberty and property of all persons, and the 14th Amendment requires the states to do so on an equal basis. Thus, if the baby is a person, the states cannot outlaw and prosecute only postnatal killings; they must outlaw and prosecute prenatal killings as well.

We know the baby in the womb is a person because she or he has human parents and possesses from conception all the genomic material needed to be viable. Through guardians, the baby can inherit, litigate and own property.

The reception of the Blessed Sacrament is limited to Roman Catholics who are not in a state of grave sin. The sin is facilitating abortions, not politically supporting those who favor them. Here is where Biden would have a sound point when he argues that this is a private matter if he were just private citizen Joe, voting for folks who support abortion. Then, his conscience and his beliefs would be mostly a private matter between him and his confessor.

But he is not private citizen Joe. He is the president of the United States who exercises his authority under unjust laws to facilitate and pay for abortions, and that is a grave sin.

What is a grave sin? It is a grievous act of weakness or defiance done with sufficient reflection and full consent of the will. All three aspects of sinfulness gravity, reflection, consent must be present for the sinner to have culpability. There is no dispute but that abortion is a grievous matter. Unless Biden's exercise of his presidential powers is not done with sufficient reflection and full consent of his will, he is likely culpable for the sin of abetting the killing of innocent human life.

On the other hand, if he firmly believes that the baby in a womb is not a person, that somehow abortion does not kill an innocent human life, that Jesus in Mary's womb was not God and that Mary could morally have killed Him, then he should leave the Catholic Church. For if he stays, at the least, he is culpable for having a gravely and substantially malformed conscience one that embraces heresy.

Even the arguments of the preeminent modern Catholic defender of the primacy of conscience, St. John Henry Newman, would not help Biden. Newman was a 19th-century British academic and Anglican priest who converted to Catholicism and rose to the College of Cardinals. At his beatification, Pope Benedict XVI summarized Newman's teaching on conscience as "not a path of self-asserting subjectivity, but, on the contrary, a path of obedience to the truth that was gradually opened up to him."

The key word here is "gradually." This is so because one's conscience Biden's, yours and mine discerns more as one's intellect learns more.

Stated differently, no one knows how Biden discerns right from wrong, and could change his mind, but Biden himself. If his conscience tells him that the baby in the womb is not a person as un-Catholic and irrational as that is his aiding abortion is still gravely sinful, but he may not be culpable.

Now back to Biden's public dispute with the American Catholic hierarchy. It is profoundly the duty of the bishops to safeguard and protect the sacraments. Traditionally, priests trust the recipient of the Blessed Sacrament not to be in a state of grave sin at the time of the reception.

But one who directly and publicly employs the assets of government to kill babies and then receives the Blessed Sacrament nevertheless if uncorrected by the hierarchy will cause grave scandal. As Biden's reception of the Sacrament and his facilitation of abortion are public, his admonition should be public as well.

A retired bishop friend of mine recently put it this way: Do you think it was right for the Catholic hierarchy in Germany to remain silent and permit priests to give the Blessed Sacrament to SS officers whose regime was slaughtering the Jewish people because unjust laws permitted them to do so? The answer is obvious because Catholics who help to kill innocents are Catholic in their own minds only.

More:
Joe Biden and the Blessed Sacrament | Napolitano - New Jersey Herald

On Wednesday, the Court decided four cases. Each decision resolved an important question of constitutional law. First Collins v. Yellen held that the structure of the Federal House Finance Agency was unconstitutional. Second,Mahanoy Area School Districtheld that a school could not punish a student for sending "vulgar" snapchat messages. Third,Cedar Point Nursery v. Hassid held that California violated the Takings Clause of the Fifth Amendment by requiring farmers to admit union organizers. Fourth,Lange v. California held that the hot pursuit doctrine does not categorically apply to a fleeing misdemeanant. I have now edited all four cases for the Barnett/Blackman supplement. (Randy and I have added a chapter on constitutional criminal procedure to the Fourth Edition of our casebook.) Please email me if you'd like a copy.

I plan to write more about each case. Here, I'd like to revisit my dismal predictions. I correctly predicted that Justice Alito would writeCollins. I whiffed on the other three. I had hoped Justice Kagan would write Mahanoy. She would have brought verve to the topic of student free speech. Alas, generations of principals, teachers, and students will have to suffer from Justice Breyer's staid prose. I thought Justice Alito or Kavanaugh would write Cedar Point. Wrong. The Chief kept it for himself. In light of his votes inHorne I and II, Roberts is especially strong on the Takings Clause. If there is a vehicle somewhere to overrule Kelo, now is the shot. Finally, I didn't have strong thoughts onLange. I predicted Sotomayor, but instead we got a Kagan opinion.

We are left with eight cases. The Court will hand down some tomorrow, and probably the rest on Monday, possibly Tuesday.

January Sitting

Only one case is outstanding: Guzman-Chavez. I still don't have a strong prediction here. I'll give this statutory interpretation case to Barrett. She was very active during oral arguments on statutory nuance.

February Sitting

Only one case is outstanding:Brnovich. Because Roberts ended up writingCedar Point, I am going with Alito or Kavanaugh forBrnovich.

March Sitting

Only one case is outstanding: TransUnion. I'll stay with Kagan for this Rule 23 case.

April Sitting

Justice Breyer wrote the majority in Mahanoy. There are five outstanding cases from that sitting: PennEast (Barrett),Minerva (Kagan), AFP/Thomas More v. Bonta (Roberts),Chehalis (Gorsuch), andHollyFrontier (Barrett).

Read this article:
Recapping Wednesday's Cases, and Predicting the Remaining 8 Cases - Reason

In a major victory for property owners facing state and local land use regulation, the U.S. Supreme Court on Wednesday ruled 6-3 that a California regulation granting union organizers the right to access private property is a per se physical taking requiring the payment of just compensation under the Takings Clause of the U.S. Constitution. Cedar Point Nursery v. Hassid, 2021 WL 2557070 (U.S. June 23, 2021). Cedar Point represents another expansion by the Roberts Court of property owner rights under the Takings Clause and opens the door further to legal challenges to government mandates allowing access to private property.

Cedar Point began with a federal lawsuit under the Fifth and Fourteenth Amendments by two California growers challenging a decades-old state regulation granting labor organizations access to an agricultural employers property for up to three hours per day, 120 days per year, for labor organizing purposes. The lead plaintiff, a grower, challenged the regulation after union organizers entered the companys property without notice, causing some workers to join in a protest and others to leave the job site. Plaintiffs alleged that the regulation created an easement on their properties that amounted to a per se physical taking, requiring just compensation under the Constitution.

The trial court rejected the growers argument that the regulation was a per se physical taking because it did not allow the public to access their property in a permanent and continuous manner for whatever reason. The Ninth Circuit affirmed, explaining that the Penn Central analysis for regulatory, not physical, takings was appropriate, and holding that because the growers did not contend that the regulation deprived them of all economically beneficial use of their property, per se treatment was inappropriate and the takings claim was invalid. 923 F.3d 524 (2019).

Writing for the Court, Chief Justice Roberts held that the Ninth Circuit erred when it applied Penn Central because the appellate courts decision was incorrectly focused on the fact that the government action was a regulation. Rather, the essential question is whether the government has physically taken property for itself or someone else by whatever means or has instead restricted a property owners ability to use his own property. The Court reasoned that because a physical appropriation of property had occurred regardless of whether it was a result of a state regulation Penn Central has no place.

The Court also rejected the Ninth Circuits holding that the regulation did not constitute a per se taking because it only granted temporary access to the union organizers. The Court held that this position is insupportable as a matter of precedent and common sense, citing several Supreme Court precedents that established temporary takings as physical takings requiring compensation.

The three dissenting justices argued that the California regulation falls within the scope of Penn Central and voiced concerns about the potential for the Courts decision to require compensation for government access for health and safety inspections and similar activities. The majority opinion dismissed those concerns, noting that such access is typically required as a condition of a permit, license, or registration.

The Cedar Point Nursery decision broadens the reach of the law of per se physical takings, a typically more straightforward and plaintiff-friendly form of takings claim than regulatory takings. Coupled with the Supreme Courts 2019 decision in Knick v. Scott Township, 139 S.Ct. 2162, that expanded access to the federal courts for takings claims, property owners and businesses now have more tools to negotiate, limit, and where necessary, litigate in federal court state and local mandates that involve intrusion on land. Per se takings that require compensation may well extend beyond easements created by regulation, such as the requirement at issue in Cedar Point.

[View source.]

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Supreme Court Finds Fifth Amendment Taking in State Regulation Granting Access to Private Property - JD Supra

Lucas Wall posted this photo of himself on social media at his mothers home in The Villages after an interview with a TV station.

A Villagers son stranded in Floridas Friendliest Hometown wants a judge yanked from his case in a legal fight over a mask mandate for air travelers.

Lucas Wall, who has been staying with his mother in The Villages due to the COVID-19 pandemic, had been hoping to travel again. He was prevented from doing so earlier this month at the Orlando International Airport because he refused to wear a mask due to an anxiety issue. Since he was prevented from boarding a Southwest Airlines flight to Fort Lauderdale, Wall has filed a flurry of legal motions in federal court, in a bid to be able to fly without wearing a mask.

The Washington D.C. resident on Friday filed a motion to disqualify Magistrate Judge Daniel Irick from his case.

Wall wants Irick removed for bias shown against me and violation of my Fifth Amendment right to due process.

Wall has attempted to bolster his case with numerous media appearances, including on Fox News. He is also riding the wave of Americans growing frustration with the air travel mask mandate at a time when the nation is seeing an explosion in travel as the July 4 holiday nears.

Wall has indicated his need for a legal remedy is urgent as his latest travel itinerary nears.

He has a flight booked for Thursday to Germany to see his brother and his wife. He said a ruling is required in the matter no later than Wednesday.

Read the original here:
Villager's son wants judge yanked from case in legal fight over mask mandate - Villages-News

By JUDGE ANDREW P. NAPOLITANO

The dispute over whether Roman Catholics who facilitate abortions should be permitted to receive the Blessed Sacrament appears to be coming to a head as President Joseph R. Biden Jr., a public Roman Catholic and public abettor of abortion, continues to attend Mass regularly and receive.

The Church has condemned abortion as being among the gravest of sins. To Catholics, the baby in the womb is a distinct human being who enjoys the right to live, and the Blessed Sacrament is not a symbol; it is substance. It is the body, blood, soul and divinity of Our Lord and Savior Jesus Christ, and there are necessary preconditions to its reception.

Can a person who facilitates killing a class of innocent human beings worthily receive the Blessed Sacrament? In a word: No. Here is the backstory.

There is no ambiguity in the Churchs teaching about abortion. It is the gravest of evils. All humans have the right to live from conception to natural death. It is a core teaching of the Church: Thou shalt not kill.

Also core among the Churchs teachings is that Catholics have a duty to inform their consciences of what the Church teaches, to exercise their informed reason in distinguishing right from wrong and to conform their acts to core Church teachings. A properly formed conscience will conclude that it is always wrong intentionally to kill an innocent human life. I doubt that Biden disagrees with these principles. If he does, he is in the wrong church.

The stumbling block for Biden and other Catholic supporters of abortion is whether or not the baby in the womb is a person. If the baby is a person, then all abortion is homicide. The Fifth Amendment protects the life, liberty and property of all persons, and the 14th Amendment requires the states to do so on an equal basis. Thus, if the baby is a person, the states cannot outlaw and prosecute only postnatal killings; they must outlaw and prosecute prenatal killings as well.

We know the baby in the womb is a person because she or he has human parents and possesses from conception all the genomic material needed to be viable. Through guardians, the baby can inherit, litigate and own property.

The reception of the Blessed Sacrament is limited to Roman Catholics who are not in a state of grave sin. The sin is facilitating abortions, not politically supporting those who favor them. Here is where Biden would have a sound point when he argues that this is a private matter if he were just private citizen Joe, voting for folks who support abortion. Then, his conscience and his beliefs would be mostly a private matter between him and his confessor.

But he is not private citizen Joe. He is the president of the United States who exercises his authority under unjust laws to facilitate and pay for abortions, and that is a grave sin.

What is a grave sin? It is a grievous act of weakness or defiance done with sufficient reflection and full consent of the will. All three aspects of sinfulness gravity, reflection, consent must be present for the sinner to have culpability. There is no dispute but that abortion is a grievous matter. Unless Bidens exercise of his presidential powers is not done with sufficient reflection and full consent of his will, he is likely culpable for the sin of abetting the killing of innocent human life.

On the other hand, if he firmly believes that the baby in a womb is not a person, that somehow abortion does not kill an innocent human life, that Jesus in Marys womb was not God and that Mary could morally have killed Him, then he should leave the Catholic Church. For if he stays, at the least, he is culpable for having a gravely and substantially malformed conscience one that embraces heresy.

Even the arguments of the preeminent modern Catholic defender of the primacy of conscience, St. John Henry Newman, would not help Biden. Newman was a 19th-century British academic and Anglican priest who converted to Catholicism and rose to the College of Cardinals. At his beatification, Pope Benedict XVI summarized Newmans teaching on conscience as not a path of self-asserting subjectivity, but, on the contrary, a path of obedience to the truth that was gradually opened up to him.

The key word here is gradually. This is so because ones conscience Bidens, yours and mine discerns more as ones intellect learns more.

Stated differently, no one knows how Biden discerns right from wrong, and could change his mind, but Biden himself. If his conscience tells him that the baby in the womb is not a person as un-Catholic and irrational as that is his aiding abortion is still gravely sinful, but he may not be culpable.

Now back to Bidens public dispute with the American Catholic hierarchy. It is profoundly the duty of the bishops to safeguard and protect the sacraments. Traditionally, priests trust the recipient of the Blessed Sacrament not to be in a state of grave sin at the time of the reception.

But one who directly and publicly employs the assets of government to kill babies and then receives the Blessed Sacrament nevertheless if uncorrected by the hierarchy will cause grave scandal. As Bidens reception of the Sacrament and his facilitation of abortion are public, his admonition should be public as well.

A retired bishop friend of mine recently put it this way: Do you think it was right for the Catholic hierarchy in Germany to remain silent and permit priests to give the Blessed Sacrament to SS officers whose regime was slaughtering the Jewish people because unjust laws permitted them to do so? The answer is obvious because Catholics who help to kill innocents are Catholic in their own minds only.

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Biden and the Sacrament | News, Sports, Jobs - Gloversville Leader-Herald

More than 30 years ago, based only on the statements of two witnesses who either recanted or failed to appear in court, Curtis Crosland was convicted of the 1984 murder of South Philadelphia store owner Il Man Heo and sentenced to life in prison.

On Thursday, Crosland, 60 a father of five and grandfather of 32 was released from the State Correctional Institution Phoenix in Montgomery County. So many loved ones crowded onto his sisters narrow block in the citys Cobbs Creek section, screaming and hugging, that traffic ground to a halt.

I just came home after 34 years. Ive been exonerated, Crosland apologized to one driver. She responded, Praise God!

Crosland is the 21st person exonerated with support from District Attorney Larry Krasners Conviction Integrity Unit, which concluded that investigators had illegally concealed troubling information about the witnesses who accused Crosland and evidence pointing to another suspect.

U.S. District Judge Anita Brody this week ordered Crosland released or retried, and the DA formally dropped the charges. In her order, Brody affirmed the CIUs efforts, saying the DAs first responsibility is to justice: The responsibility of doing justice does not disappear once a conviction is achieved. In some circumstances, the duty to seek truth can and should extend to cases long closed.

The victims family also welcomed Croslands release, said Charles Heo, 50, who recalled translating the trial prosecutors explanations into Korean for his mother when he was just a teenager: He said, We got the guy. We believed him.

He and his sister Song, 52, described their father, known in the community as Tony, as a revered, lighthearted, generous, and gregarious figure who took care of his neighbors, often carrying over more than $1,000 in I owe yous from those who couldnt afford to pay. He was shot during a gunpoint robbery of his H&B Grocery Store by a masked perpetrator who knew to call him by his first name.

Despite his loss, Heo said he was grateful to see Croslands family reunited. There was an injustice in this case, he said, and the ripple effects caused untold damage through our familys lives, through the Crosland familys lives.

READ MORE: Phillys murder exonerations raise questions about decades of homicide investigations

In court filings, the CIU made clear Croslands case involved not only apparent misconduct but also a compelling innocence claim.

To me, its a case that has all the telltale signs of a wrongful conviction, CIU supervisor Patricia Cummings said. You have a case that was cold. Then you have snitches involved wanting something in their case, and then the historical lack of understanding and appreciation of [disclosure requirements].

According to legal filings, the case was built on lies by informants police knew were tainted long before Croslands arrest.

One man, Rodney Everett, was facing a parole violation when he agreed to provide information in multiple murder cases even testifying in two preliminary hearings on the same day.

The DAs search of the police file yielded extensive undisclosed documents, including a failed polygraph test, a statement from Everetts wife that he had identified a different perpetrator, and an undated letter from Everett to a homicide detective, seeking help in exchange for information.

The other informant, Delores Tilghman, had previously given a false statement in a different murder case, prosecutors say.

In interviews Thursday, both witnesses said they felt coerced into giving false statements.

It was just very brutal. They threaten you. They will use your family and they will tell you what they will do to your family, taking your kids, said Everett, who testified at Croslands preliminary hearing but said he repeatedly tried to recant. When you tell the truth, they dont care. Theyll accept the lies, but they wont accept the truth.

Everett refused to testify at Croslands trial, invoking his Fifth Amendment right against self-incrimination, but his earlier statement was read into the record. After Croslands conviction was overturned, Everett was granted immunity to testify at the second trial but recanted on the stand.

Yet Crosland was convicted again by a second jury.

READ MORE: The battle in Philly DAs Office: Conviction Integrity Unit report shows rocky path to reform

As for Tilghman, she said detectives came to her home and woke her up, threatening to arrest her if she didnt testify.

It was him or me, she said. They were threatening me with putting me in jail. ... They can make that happen. I seen them make his life disappear with one witness.

She said shed long regretted her role in the case and was glad to learn of Croslands release.

Over the years, Crosland has presented a growing collection of evidence to support his innocence: three eyewitnesses to the robbery and murder who said he was not the killer, and eventually another witness willing to identify the alternative suspect. He filed nine post-conviction relief petitions in state court and four federal habeas petitions before he was finally cleared by evidence that was contained in Philadelphia police and prosecutors files all along.

Some of that information was sealed in connection with grand jury investigations, but Cummings said that doesnt excuse the nondisclosure.

The exculpatory information was technically in the hands of prosecutors, she said, and should have been provided.

Crosland represented himself for decades as lawyers botched his case, abandoned his claims, or filed letters with court saying his case had no merit. After the Federal Community Defender Office was appointed, they gained support from the CIU.

When he saw the evidence that had been hidden in the case last year, he said, it made me very emotional. It was mind-blowing that all that could be hidden, to convict an innocent man. It was painful. It was difficult to even share with my family some of the things I learned that happened to me.

But on Thursday night, home with his sons and wearing street clothes for the first time in 34 years, he and his family said it felt like divine intervention.

Risheen Crosland, 36, of West Oak Lane, was just 2 when his father was arrested. His oldest brother, Curtis Jr., became the father figure at age 6.

I was told when I was 16 that he would always belong to the state of Pennsylvania, Risheen Crosland said. I tried everything I could to get my father out. Then when nothing else worked, it seemed like God just showed me what he could really do.

Engaged to his childhood sweetheart Jackie Gray, Crosland said his goal now is to get a decent job, spend time with his family, and use his hard-earned legal knowledge to help the other family of innocent men he left behind in prison.

Then, more calls and FaceTime visits came in, from even more friends and relatives whod just heard the news. Crosland had decided to keep his homecoming a secret, after so many decades of hopes raised and then dashed.

You never know whats going to happen, he said. For years, Ive been saying, Im coming and Its gonna happen, and it didnt happen. I didnt want them to feel torn down.

See the article here:
A Philly man was cleared of murder after 34 years by evidence that was in the police file all along - The Philadelphia Inquirer

From Nunes v. Lizza, handed down yesterday by Magistrate Judge Mark A. Roberts (N.D. Iowa):

Defendants published an article about Plaintiffs' dairy farm. A thorough statement of the factual background is set forth in Judge Williams's Memorandum and Order regarding Defendants' Motion to Dismiss. Because of Judge Williams's ruling, the sole surviving claim is for defamation arising from Defendants' allegedly false statements that Plaintiffs knowingly employed undocumented or unauthorized workers.

Thereafter, discovery focused on the immigration status of Plaintiffs' employees, including, among other things, Plaintiffs' I-9 documentation and records in the possession of the Social Security Administration. Defendants noticed the depositions of six of Plaintiffs' current employees and had them served with subpoenas duces tecum that required them to bring identification to their depositions.

Plaintiffs' counsel, Steven S. Biss, accepted service of the subpoenas on behalf of the employees, but Plaintiffs arranged for separate counsel, Justin Allen, to represent the deponents. F.S.D. was the first such witness to be deposed on May 12, 2021.

While Defendants' counsel was questioning F.S.D. about his purported signature on various documents, Mr. Allen stated, "I've advised my client to invoke his Fifth Amendment right regarding questions about this document. [F.S.D.]" Mr. Biss then interrupted stating, "Hold on. Hold on. Can we go off the record for just a minute? I'd like to talk to Justin before we do this." In fact, the deposition was delayed for much more than just a minute. More than two hours later, the deposition resumed. When Defendants' counsel attempted to make record, Mr. Biss interrupted him several times insisting that Mr. Allen would make a statement and the deposition would be rescheduled. Once Mr. Biss got his way, Mr. Allen stated,

I am not going to allow [F.S.D.] to answer that question because when we left it I advised him to invoke his Fifth Amendment right. We took a break. We went off the record, and we've had several conversations with lots of people and I've talked to [F.S.D.], and as of now I am no longer representing him. I am not his lawyer.

The depositions were then halted. At the hearing, Mr. Biss stated that a new lawyer had been retained to represent the employee witnesses at their depositions, but he could only identify the new attorney by her first name, Jennifer. Mr. Biss was ordered to provide her name to opposing counsel and the Court. To date, I have not received that information.

Defendants complain about Mr. Biss's behavior during the deposition of F.S.D. Particularly, Defendants assert that Mr. Biss asserted argumentative objections that were disruptive and intended to intimidate or coach the witness. Mr. Biss asserts that his objections were proper and "intended to call out the Defendants' overt harassment of the NuStar employee." Mr. Biss's further explanation on this issue is puzzling and troubling:

No effort was made to "signal to the witness how to answer questions" or to "coach[ ] the witness to testify in a certain way." Counsel for the Defendants got answers to all his questions, including those about [F.S.D.'s] traffic tickets. The deponent was never instructed not to answer. Indeed, he wanted to answer all questions. Plaintiff's counsel sought a side bar with counsel for the witness to determine whether the witness wanted to take the Fifth Amendment. The witness did not, which is why the witness terminated the lawyer with absolutely no prompting by Plaintiffs' counsel.

During the deposition, Defendants' counsel was asking questions about documents such as a bond F.S.D. had posted and a traffic ticket he had received that bore his signature. Mr. Biss made a lengthy speaking objection claiming this was harassment. Here, where the identity and immigration status of the employees is a central issue, it is not harassing or irrelevant to ask questions about such documents. In the context of this case, it is not conducive to obtaining truthful answers from an employee such as F.S.D. to have his employer's lawyer making lengthy, animated objections to those questions.

The most puzzling and troubling aspect of Mr. Biss's explanation, however, is the representation that he "sought a sidebar with counsel for the witness to determine whether the witness wanted to take the Fifth Amendment." This two-hour "sidebar" occurred immediately after Mr. Allen stated, "I've advised my client to invoke his Fifth Amendment right regarding questions about this document."

Normally, one would expect the lawyer for a deponent to be in the best position to ascertain whether the deponent desires to assert a privilege. There is no record of the sidebar, only Mr. Biss's protestations that the employees are not being pressured regarding their rights under the Fifth Amendment. Mr. Biss makes bald assurances that the employees want to answer all questions and not assert their Fifth Amendment rights. Nevertheless, Mr. Biss's behaviorcoupled with the facts that (a) the privilege was raised, (b) the privilege was perhaps withdrawn after a lengthy sidebar, and (c) Mr. Allen was firedgives me little confidence that F.S.D. could make a knowing waiver of his Fifth Amendment rights under these circumstances.

Here, the problem is at least the appearance of an attorney pressuring a witness not to assert a privilege and effectively canceling the deposition to obtain that result. I make no finding based on this record that such pressure did, in fact, occur. Nevertheless, the record lends itself to the appearance that [F.S.D.] may have been subject to pressure not to independently assert his rights.

Read more:
Devin Nunes's Libel Lawyering, Employee Witnesses, and the Privilege Against Self-Incrimination - Reason

The principle that anyone born in the United States is an American citizen is enshrined in the 14th Amendment. But in a divided decision Tuesday, a federal appeals court reaffirmed the unique inapplicability of the citizenship clause to one of Americas six federal territories American Samoa, the only one of the six where birthright citizenship does not currently apply.

The ruling in Fitisemanu v. United States doesnt just rest on a deeply flawed understanding of the 14th Amendment. It also breathes new life into a long since discredited distinction that the Supreme Court drew in the early 20th century one in which territories that just happened to be predominantly white received full constitutional protections, while those that were not didnt.

After years of struggle between the U.S., Germany, and United Kingdom for dominance over the Samoan island chain, the islands were partitioned into two in 1899. Just prior to the partition, America had gained significant overseas territories as a result of concessions arising out of the Spanish-American War. The eastern group of Samoan islands quickly joined the ranks after tribal leaders formally ceded the land to the Americans. The western group remained a German possession through Germanys defeat in World War I, becoming an independent nation in 1962.

But even as residents of other U.S. territories gained birthright citizenship either by constitutional mandate or statute, and even as American Samoans (a disproportionate percentage of whom have served in the U.S. military throughout the past century) fought for similar and other protections in Congress, they were left out.

A federal judge in Utah had agreed that the denial of citizenship was unconstitutional but a divided panel of the Denver-based federal appeals court reversed that decision.

In the case decided Tuesday, three American Samoans living in Utah had brought suit challenging their denial of citizenship which, among other things, means that they are denied the right to vote, the right to run for elective federal or state office outside American Samoa, and the right to serve on federal and state juries. A federal judge in Utah had agreed that the denial of citizenship was unconstitutional but a divided panel of the Denver-based federal appeals court reversed that decision.

Writing for the majority, Judge Carlos Lucero relied heavily on a series of early-20th century Supreme Court decisions known as the Insular Cases. In those cases (none of which dealt specifically with birthright citizenship), the justices adopted a distinction between incorporated territories (those U.S. possessions that were destined for statehood) and unincorporated territories (those U.S. possessions that were not). The Constitution generally applied to its fullest extent in the former, whereas courts were left to decide on a case-by-case (and provision-by-provision) basis the extent to which it applied in the latter.

Forests have been felled on the myriad problems with the Insular Cases. To make a long story shorter, as five of the leading scholars on the subject wrote in 2014:

The Insular Cases approach to the constitutional status of the U.S. territories lacks any grounding in constitutional text, structure, or history. The Insular Cases, rather, reflected the assumptions of the time that the United States, like the great European powers of that era, must (despite being constrained by a written Constitution) be capable of acquiring overseas possessions without admitting their uncivilized and savage inhabitants of alien races to equal citizenship. That reasoning, even if it were constitutionally relevant, is the product of another age. It has no place in modern jurisprudence even if it had any validity in earlier times.

Of course, lower courts would still be bound by those decisions if any of them were squarely on point. But none of the Insular Cases involved the citizenship clause of the 14th Amendment. Instead, the Court of Appeals was free to reach the issue anew in this case and still chose to abide by the Insular Cases discredited framework. In the process, the court wholly ignored the original context of the citizenship clause enacted to overturn a Supreme Court decision in which one of the questions had been the status of slaves in federal territories.

The Supreme Courts 1857 decision in the Dred Scott case is infamous for its full-throated legal defense of the institution of slavery. But its constitutional significance was its specific holding that slaves and their descendants were not and could not become U.S. citizens. Congress accordingly did not just amend the Constitution to abolish slavery after the Civil War; it also wrote into our founding charter the principle of birthright citizenship that anyone born in the United States is a citizen thereof.

Turning to the question of whether the citizenship clause should apply in an unincorporated territory like American Samoa, the 10th Circuit Court of Appeals focused its analysis on whether it would be impractical or anomalous to extend birthright citizenship to American Samoa and held that it would.

Their reasoning: a majority of American Samoans have expressed concern that recognition of birthright citizenship would open the door to arguments that other constitutional provisions cannot be reconciled with some of American Samoas unique legal traditions. That includes worries that if the citizenship clause of the 14th Amendment applies to American Samoa, it might presage a holding that the Supreme Courts modern Fifth Amendment property rights jurisprudence likewise applies to the Pacific Ocean territory, , threatening the islands communal ownership of property..

But this analysis not only misapplied the Supreme Courts precedents (which ask whether recognition of the right is impractical or anomalous from the federal governments perspective); it also fundamentally devalues the importance of constitutional rights in the territories where those rights that arent supported by a majority are perhaps the most in need of judicial incorporation.

One might wonder why its such a big deal that a federal appeals court has held that 50,000 Americans arent constitutionally entitled to birthright citizenship. The answer is two-fold: First, to reach that result, the court had to both ignore the original purpose and context of the citizenship clause and revive the deeply problematic rationale of the Insular Cases

Second, and more fundamentally, one of the two central goals of the post-Civil War amendments was to hard-wire into the Constitution the idea that theres only one class of American to repudiate not only the institution of slavery, but also the caste system it created. The more that contemporary courts recognize circumstances in which our compatriots are not treated as equals, the more they open the door to additional erosions of this fundamental ideal.

Steve Vladeck is a professor of law at the University of Texas School of Law whose teaching and research focus on federal jurisdiction, constitutional law and national security law. He is co-editor-in-chief of the Just Security blog (@just_security) and co-host of "The National Security Law Podcast" (@nslpodcast).

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American Samoans are the latest victims of these ignorant Supreme Court rulings - MSNBC

Rooted in legal scholarship and academia, critical race theory experienced a small spike in public consciousness last September shortly before former President Donald Trump signed a related executive order and then interest skyrocketed over the past two months.

Signs saying, "Stand Up Greenwich: Unmask our children, ban critical race theory, protect medical freedom" popped up earlier this month in Greenwich. People have raised concerns about critical race theory to the boards of education in Greenwich and in East Lyme. More than 500 people have signed a petition asking the Guilford Board of Education to disavow critical race theory.

Republican legislators in at least 22 states have introduced billstargeting theteaching of critical race theory or certain "divisive concepts." A month ago, 20 Republican attorneys general wrote an anti-CRT letter to the U.S. Department of Education Secretary Miguel Cardona saying the department shouldn't fund "any projects that characterize the United States as irredeemably racist or founded on principles of racism."

Lewis Gordon, head of the philosophy department at the University of Connecticut, called the latter statement a false dilemma.

"To say that the United States is a country that was built on racism and colonization and genocide is not to say that's the only things the United States were built on," he said, "because throughout, there were people including among whites who fought against white supremacy, racism, colonialism and genocide."

So, what is critical race theory, and how did the phrase become so pervasive in current discourse? And is the backlash actually to critical race theory, or to something else?

Its origins date to the 1970s and '80s, and the late Harvard Law School professor Derrick Bell.

Quinnipiac University School of Law professor Angela Robinson, who teaches a course called Critical Race Theory, said it started with a group of lawyers and law professors who came up with the principles that race is a social construct and that "racism is pervasive in our society because we really haven't unpacked the effect of race."

"Critical race theory says that systems are designed to get the results they get, and so if we are continually having racial disparities which we have in wealth and education and health outcomes that must be because there is something in the system that is continually producing those results," Robinson said.

She said she teaches her students that critical race theory is one way to look at things but not the only way.

Robinson and other scholars of critical race theory say some misconceptions are that it wants white people to feel guilty about being white and that it's rooted in Marxism.

Dishonest takes on both sides

Gerald Torres, a Yale School of the Environment and Yale Law School professor who is a scholar of critical race theory, said he has "no idea whether people are being taught to feel guilty or not, but in any event, that's not critical race theory." He and other professors say the term is now being used as a "boogeyman."

Critical race theory began by viewing race as an organizing principle to examine legal doctrine, but Torres said it then moved from law schools to schools of education, and began to inform sociological and historical inquiries.

"Race has played a role in American history, and it doesn't diminish the virtues of American society to say that it did," Torres said.

William Lugo, sociology and criminologyprofessor at Eastern Connecticut State University, doesn't explicitly tell his students, "Now this is critical race theory" but it's embedded in his curriculum, as he looks at how race and racism have shaped policies and criminal justice.

He feels "frustration" with the current discourse around the theory, saying it's getting misrepresented by a focus on the most extreme examples, and he sees dishonest takes on both sides, thanks to Twitter.

Teaching criminal justice, Lugo said he tends to have a pretty even split between liberal and conservative students, and they typically respond well to critical race theory concepts.

"I don't get this sort of lightning rod backlash that you see online, and I've been doing it for 16 years," he said.

'Divisive concepts'

Yi-Chun Tricia Lin, professor and director of Women's and Gender Studies at Southern Connecticut State University, called the backlash to critical race theory an "orchestrated panic" but doesn't think all this attention is a bad thing.

In October, she organized a weeklong Critical Race Theory Teach-In at Southern. It was aresponse to Trump's Sept. 22signing Executive Order 13950, whichprohibited the United States Uniformed Services or government contractors from providing workplace training on certain "divisive concepts" and allowed federal agencies to require that grant recipients not use federal funds to promote such concepts.

The list of divisive concepts includes that "one race or sex is inherently superior to another race or sex";"the United States is fundamentally racist or sexist"; "an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex"; "any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex."

The U.S. District Court for the Northern District of California in December issued a preliminary injunction banning enforcement of parts of the order pertaining to contractors and grantees, on First Amendment and Fifth Amendment grounds. President Joe Biden revoked the orderon Jan. 20.

At SCSU in October, at a kickoff virtual discussion with 10 speakers, multiple professors said it would be impossible to do their jobs effectively without critical race theory.

"We cannot discuss or critique America, as social scientists, without discussing or critiquing racism in this country, as racism is embedded in the very fabric of the United States," sociology professor Cassi Meyerhoffer said.

Janani Umamaheswar, also a sociology professor, questioned how we can approach a solution to the incarceration of Black and Latino people "at such alarming rates" without recognizing the role race plays, and said a colorblind approach to questions of social equity is "fundamentally flawed."

Siobhan Carter-David said it's impossible for her to teach American history "without pulling from an understanding about the role that white supremacy had in crafting the United States, even if we start after slavery ends." She listed a slew of racialized practices: convict leasing, health care experimentation, political disenfranchisement, redlining, unethical banking practices, the war on drugs.

"I don't think that anti-racist activists or people who teach critical race theory have ever made the argument that people should take responsibility for the actions of their ancestors, but rather to understand how this manifests itself today," Carter-David said.

This past week, UConn sociology professor Noel Cazenave said critical race theory first developed at a time when there was a backlash to the civil rights movement, and he sees the current attention as "a highly organized backlash" to systemic racism being forced into national discourse through protest last summer.

"Critical race theory is a perfect foil because nobody knows what the heck it is," Cazenave said.

University of New Haven professor and retired Navy officer Robert Sanders, who chairs the National Security Department, and teaches a course called Security, Sovereignty, and Slavery, said those who latched onto critical race theory "as the new boogeyman" say, "Oh, this is just another way of them telling us America is bad." But, he said, "No, America is not bad; America, just like a lot of other countries in the world, have done bad things."

Akey orchestrator of theconflict over critical race theory is Christopher Rufo, a senior fellow at the conservative Manhattan Institute for Policy Research, who told The New Yorker in a profile he called "accurate, fair, and thoughtful" the term "is the perfect villain." Rufo helped draft Trump's executive order, after the former president saw Rufo talking about critical race theory on "Tucker Carlson Tonight."

Rufo tweeted in March, "We have successfully frozen their brand 'critical race theory' into the public conversation and are steadily driving up negative perceptions. We will eventually turn it toxic, as we put all of the various cultural insanities under that brand category."

Some state Republicans push back

On June 7, Sen. Rob Sampson, R-Wolcott, proposed an amendment to Senate Bill 1073, which has the stated purpose of requiring "a study of state agency policies and programs to assess the equity of state government programs and the allocation of state resources."

The amendment would have prohibited Connecticut schools from teaching "divisive concepts," the same ones referenced in Trump's order, to students in kindergarten through12th grade.

"I firmly believe that we have got to get a hold of our education system in this state and in this country, and remind the next generation that America is the greatest place on Earth," Sampson said.

In response to questions from Sen. Mae Flexer, D-Windham, and Sen. Matt Lesser, D-Middletown, Sampson said the bill wouldn't prohibit teaching the Civil War or civil rights movement, and he believes schools should be able to teach that the founding fathers owned slaves.

Flexer pushed back against the part about students not feeling "discomfort, guilt, anguish, or any other form of psychological distress."

"I just don't know how we can legislate the feelings of the students," she said. She added, "I would argue that sometimes a feeling of discomfort, guilt or anguish might actually make a student want to learn more, might make a student want to engage in policies to change what they're learning about."

The amendment ultimately failed on a party-line vote, but the overall bill passed without any opposition.

During the back-and-forth between Sampson and Flexer, neither used the term "critical race theory," though Sampson did later sayhe offered the amendment "to prohibit the teaching of critical race theory in Connecticut schools."

Sampson apologized on the Senate floor for "not bringing what are many, many examples of these divisive concepts being taught in the classroom across our state" but told The Day on Friday, "I never said there were examples; I was doing it preemptively."

After the vote, Sampson emailed constituents asking people who "know of efforts to incorporate Critical Race Theory in our schools" to email him.

He told The Day that "people have certainly contacted me on the subject" but "I don't want to provide anything at this time," that he's pulling something together and wants to do that on his own timeline.

He did point to a statement this week on critical race theory from the State Education Resource Center of Connecticut, which is leading the development of a new course of studies under a state law requiring the inclusion of Black and Latino studies in public school curriculum.

SERC said through its research, it learned that CRT "strives to advance a social justice framework," explains how race and racism operate, is typically interdisciplinary and recognizes that race works with "gender, ethnicity, class, and sexuality as systems of power."

"We know how confusing and disruptive some of these concepts can seem because we felt it too," SERC wrote. "But it became impossible to ignore the legacy of racism and its impact on our educational system. We could not discount students' lived experience with race and because of their race. These are their stories, and they have gone untold for so long."

Sampson also joined a virtual town hall that Rep. Kimberly Fiorello, R-Greenwich, held Monday about critical race theory called, "Why is the Accusation of Racism Everything and Everywhere?" She said many parents in Greenwich and Stamford reached out to her with concerns about what they were seeing in their classrooms.

Her featured guest was anthropologist Peter Wood, president of the National Association of Scholars and author of "1620: A Critical Response to the 1619 Project."

Wood agrees that race is a social construct, and said it's true that racism has affected "political participation, wealth creation, housing, medicine, the labor market, sports, the military, schooling and higher education, and opportunities in the arts." But he doesn't believe racism is "foundational or intrinsic to American institutions."

Fiorello also went on Fox News to criticize the passage of a bill that, in part,declared racism a public health crisis, which she said "is critical race theory in our laws." While only one Democratic representative voted no on the bill, Republicans in the House were split: 22 voted in favor and 32 against.

e.moser@theday.com

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Critical race theory has proved divisive. What is it? - theday.com